*2 JACOBS, Before HOFFMAN, President Judge, CER- CONE, PRICE, VOORT, der HESTER, VAN SPAETH and JJ.
PER CURIAM: wife, were found Hon- guilty by husband Appellants, Wolfe, J. President in a Judge, orable Robert 19721 for Device and Cosmetic Act of violating Drug, verdict a controlled substance. Post motions hav- delivering denied, sentence was and these imposed been filed ing followed. appeals charges against contend the
Initially, appellants under 1100 because them should be dismissed Pa.R.Crim.P. procedural were denied a trial. The speedy history The complaints against appellants the case is as follows. were filed which made the run August date under Rule 1977. waived February They but filed arraignment, complaints motions to dismiss the grounds. Arguments constitutional on these motions were However, scheduled for the cases were February *3 listed for a trial on 28th. non-jury January January On 21st, Ellis, appellants, counsel for the Alan in a letter Esq., Wolfe, addressed to of the Judge requested postponement a date, trial the hearing and that or on the motion argument to dismiss be rescheduled so that it “immedi could be heard trial”; to the ately prior agreed to waive the 1100. provisions Rule He also a requested rescheduling the cases to a date after March 8th when he would have returned from his vacation. He also stated the Common 28th, wealth had On the agreed. January Commonwealth the court for an petitioned extension of the time permissible 1100(c) for trial under Rule because of appellants’ pending 1, which petition to dismiss was to be on argued February 1977. No was held on the hearing petition, Commonwealth’s and it was ex it was filed. An granted parte day extension of 64 from the run date was days granted 26, 1977 the making April permissible last date for trial. 21, The commenced on March counsel, In their original appellate brief filed new Paul by Boas, Esq., appellants allege had no notice of the 233, 13, amended; April 1. Act of P.L. No. 64 as 35 P.S. § (Supp. 1976-77). 780-113 § 538 However,
Commonwealth’s for the extension. petition record indicates their counsel did have notice. As previously stated, had sent a letter to Wolfe appellants Judge request- extension, an and also that it had been ing indicating agreed petition the District The Commonwealth’s by Attorney. carried out that Commonwealth v. merely agreement. Tay- lor, 400, 473 indicates this was a (1977) Pa. waiver, if not an that the Commonwealth’s agreement, be ex also Commonwealth v. petition granted parte. See Hickson, (1975). 235 A.2d 617 Pa.Super. 344 Appellants’ that their counsel’s waiver of Rule argument 1100 is without was merit as demonstrated improper clearly the record. No is to show that he had hearing necessary the best interest of his clients in mind when he sought agreed to a continuance so that his motion to dismiss could be before trial and at a time he would be available. argued 259 A.2d Laudenslager, Pa.Super. Commonwealth a (1978) presented similar situation. in dismissing We conclude that the lower court did not err under Rule 1100. appellants’ petition We next to a consideration of proceed appellants’ their waiver of a trial was not argument jury knowing that made. This is based on the ly intelligently argument Williams, of Commonwealth v. 454 Pa. requirements (1973), A.2d 597 one of which is that the in person, waiving trial, his or her to a must be informed that the right jury would be chosen from members of the community *4 that he or she would be allowed to in the participate selection of the do not other jury. Appellants question any this informa points Appellants argue Williams. required by tion not to them and therefore their waiver was given was invalid. of the record indicates that such
Our examination information was not included on the them colloquy given by the court on when their waiver was made. The January lower Commonwealth and the court concluded that argues this omission was the circumstances: supplied by following to be right present the waived their Although appellants 7, 1976, not pled on October and had arraignment at their a a letter from their jury by and requested guilty September District dated Attorney to the attorney in did in court with their appear person attorney they which was the set aside for the day January for the Warren Crimi- juries coming County selection of all was to being day nal trial term. Their there that purpose select a in the case. The was jury jury panel physically in court room with the lists that along showing the present At community. the drawn from the that panel had been time, informed of their to a rights jury the were appellants agree upon guilt of twelve and that the must all jurors be found not From these guilty. the defendants would that, since the circumstances, argued the Commonwealth counsel, advice of to waive a agreed with the appellants, time, From our complain. trial at that cannot jury record, however, is clear that appellants review of the it this in the given colloquy were not information specifically accepted. directed to when their waiver was personally them be inferred from the circumstances This information cannot time, nature of the place proceedings. of the Pa.R.Crim.P., in Judge accepting that the a requires from the defendant waiver of trial “shall ascertain waiver, and such intelligent whether this is a knowing of record.” Williams demands strict appear shall colloquy colloquy advising with the that the compliance provision which is to rights, accused of their constitutional one of in the selection of the shall be self participate jury panel, case, subsequent of record. In that sustaining appear his the accused that he understood fully admissions rule. Based on actions were held insufficient to satisfy same we are constrained to conclude that reasoning, advice, purpose neither nor the circumstances and prior 17th, in court on are sufficient January appellants presence us. Also see the omissions in the before supply colloquy Hooks, (1973) 450 Pa. Commonwealth v. of such a waiver intelligence may wherein it is stated “The *5 Thus, appellants’ conjectured.” guessed not be presumed, invalid, a reversal of the requiring of a trial was waiver a new trial to them. sentence, of grant and judgments to conclusion, unnecessary pass it will be of this In view are all of which by appellants, other reasons asserted as a imposed the sentence trial and related to the thereof. result granted a new trial reversed and of sentence
Judgments each appellant. HESTER, J., files a statement. dissenting HOFFMAN, J., did JACOBS, President and Judge, former of this case. in the consideration or decision participate not HESTER, dissenting: Judge, of the court the judgments I would affirm I dissent. below. Tate, wife, Larry Shirley his Gene Gulick TATE and E. W.
Gerald wife, H. Gulick, Berkich and Jean Donald R. Toni M. his and Schenck, wife, his Berkich, and Tillie P. Arthur Schenck his wife, Markle, wife, his Charles C. C. Harold L. Markle Joan wife, Thacker, B. Marchick his James Freda H. Thacker and Robinson, wife, Marchick, Joseph Beverly A. Jr. his A. wife, Robinson, Appellants, his Diane W. Moran, MORAN, his wife. and Barbara J. W. Jr.
James Pennsylvania. Superior Court 12, 1978. June Submitted 30, 1979. March Decided